Succession: Wills: Scottish Wills
In Scotland, to be valid a Will must in writing, but the rules which operate for Wills executed on or after 1st August 1995 are different from those which (continue to) operate for Wills executed before that date.
Wills executed before 1st August 1995
Legally effective Wills executed before 1st August 1995 fall into two categories, namely holograph Wills (this term encompasses Wills ‘adopted as holograph’) and attested Wills.
These are entirely in the handwriting of and signed by the testator, but not witnessed. They are often informal in nature.
A variation of the holograph Will is the Will which has been ‘adopted as holograph’. These are Wills executed in typescript or in the hand-writing of someone other than the testator. To be legally effective they must bear the words ‘adopted as holograph’ in the handwriting of the testator at the foot of the document before the testator’s subscribed signature.
Holograph Wills are not probative (self evidencing). If someone wishes to take out a grant of Confirmation on a holograph Will that person must first prove that the Will was validly executed. They would do this by producing affidavit evidence to prove that the Will was made in the testator’s handwriting.
These can be either hand-written or in typescript, but they must be signed by the testator and witnessed by two witnesses.
Attested Wills are probative so do not have to be set up (proved) by affidavit evidence.
Wills executed on or after 1st August 1995
All Wills executed on or after 1st August 1995 are governed by the provisions of the Requirements of Writing (Scotland) Act 1995. Wills, effective under this Act, can be either subscribed or (subscribed and) attested writings and may be hand-written or in typescript.
The new subscribed Will is broadly equivalent of the old holograph Will while the new attested Will performs the same function as the old attested Will.
Wills which are merely subscribed
Under the 1995 Act, to be valid as a Will, a writing must be signed at the end of the last page (subscribed) by the testator. Where a Will consists of more than one page, every page must be signed by the testator, although only the final page needs to be subscribed. The testator may sign anywhere on the other pages.
Once subscribed a Will is immediately formally valid. However, a Will which is merely subscribed is not a probative (self evidencing) document. This means that a person wishing to found on it to obtain confirmation to the testator’s estate must first prove that the Will was validly executed. So someone seeking confirmation must (as a first step) produce, to the Sheriff Clerk, affidavit evidence as to the testator’s handwriting.
Para 39 Sch4 of the 1995 Act added a new S22A to the Succession (Scotland) Act 1964. The effect of this provision is that confirmation (IHTM05104) will not be granted on Wills which are not attested (witnessed) unless the validity of the Will’s execution is set up (proved) by affidavit evidence. Essentially this is the same rule that exists for holograph Wills made before 1 August 1995.
Wills which are (subscribed and) attested
The 1995 Act provides for a second type of writing, effective as a Will (and for other legal purposes), which is a writing attested (witnessed) by one witness. A Will in this form corresponds to the formal Will made before 1 August 1995, which had to be attested by two witnesses.
Where the testator, having completed and subscribed the Will, has this formally witnessed by one witness, the resulting attested writing is probative (self evidencing). As there is a presumption that an attested Will has been validly executed, such a Will does not need to be proved by those seeking confirmation to the testator’s estate. In the unusual situation where the validity of execution is disputed, it is for the person challenging the Will to produce evidence to rebut this presumption.
The witness only needs to attest to the final subscribed signature, not to the testator’s signatures on the other pages of a multi-page Will.
The old law continues for Wills executed before 1 August 1995